P.SEKAR @ ANBALAGAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S.No.1 of 2007 before the learned District Munsif Court, Polur, Thiruvannamalai District. In the said proceedings, at the time of trial, the petitioner sought to introduce the copies of the deposition of D.Ws.1 to 5 in O.S.No.19 of 1940 which according to the petitioner establishes the existence of customary Fishing right in Water Catchment public wells, ponds and Periya Eri in respect of which the above suit was filed.

(2.) The Court below rejected the request for marking the deposition of D.Ws.1 to 5 in O.S.No.19 of 1940 on the ground that these documents marked were not between the same parties. Aggrieved by the same, the petitioners have filed the present Civil Revision Petition.

(3.) The learned counsel for the petitioner relied on Sec. 32(4) and section 33 of the Indian Evidence Act to state that the lower Court committed an error in rejecting the prayer to mark the documents. Relevant portion of Sec. 32 and Sec. 33, reads as follows: Sec. 32 Sec. 33 Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expenses which, under the circumstances of the case, appears to the Court-unreasonable, are themselves relevant facts in the following cases:- Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated, Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided-?that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the question in issue were substantially the same in the first as in the second proceeding. Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. Sec. 32 (4) (4) Or gives opinion as to public right or custom, or matters of general interests - when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.